31.A complete and accurate analysis of the international human
rights commitments of states in the context of terrorist violence
requires consideration of conventional and customary rules and
principles of both international human rights law and international
humanitarian law as well as the framework of international instruments
developed specifically for the purpose of preventing, suppressing and
eradicating terrorism. This section of the report provides a general
overview of each of these regimes of international law, which will in
turn provide a basis for the examination of specific rights in the
context of terrorism in Part III.

32.As suggested in Part I, the longstanding campaign by states
against terrorism has given rise to a body of international law
specifically intended to prevent, suppress and eradicate forms of
terrorist violence. This area of international regulation is significant
for several reasons. It provides examples of efforts by states to
protect their populations from the dangers of terrorism. As the
Commission has previously emphasized, OAS member states are obliged to
guarantee the safety of their populations,[74]
which includes taking the measures necessary to investigate, prosecute
and punish acts of terrorism.[75]
These prescriptions also form part of the international framework within
which member states’ human rights obligations must be interpreted and
applied.

33.Much of the international law of terrorism has taken the form of
multilateral treaties. Major anti-terrorism instruments include the
International Convention Against the Taking of Hostages,[76]
the Convention for the Suppression of Unlawful Acts Against the Safety
of Civil Aviation,[77]
and the Convention on the Prevention and Punishment of Crimes Against
Internationally Protected Persons, including Diplomatic Agents.[78]
These and other treaties on terrorism have developed to contain several
provisions that are considered particularly pertinent in combating this
form of violence. These provisions include articles that define
particular acts of terrorism as criminal offenses for the purposes of
the treaties,[79]
oblige states parties to make the offenses punishable by appropriate
penalties under their domestic law,[80]
and require states parties to establish their jurisdiction over offenses
and suspected offenders in particular cases and to prosecute or
extradite alleged offenders.[81]Also included in anti-terrorism instruments are provisions that
require states parties to cooperate in preventing terrorist offenses and
to provide mutual legal assistance in criminal proceedings relating to
crimes of terrorism,[82]
that require terrorist offenses to be included as extraditable offenses
in any extradition treaties between states parties,[83]
and that oblige states parties not to regard certain terrorist offenses
as political offenses, as offenses connected with a political offense or
as offenses inspired by political motives for the purposes of
extradition.[84]
It is notable in this respect that the provisions of this body of law
that require states parties to investigate, prosecute and punish
terrorist crimes coincide with the doctrine under international human
rights law according to which states are obliged to investigate the acts
and punish those responsible whenever there has been a violation of
human rights.[85]

34.In addition to treaties that address particular manifestations of
terrorism, the international community has endeavored to develop
treaties that address terrorism on a more inclusive basis. These efforts
have included negotiations at the United Nations for a comprehensive
convention on international terrorism. Responsibility for elaborating
this convention has been assigned to the UN General Assembly’s Ad Hoc
Committee on Terrorism[86]
as well as a Working Group of the General Assembly’s Sixth Committee.[87]
According to the most recent draft treaty available,[88]
the Convention includes articles similar to those found in the more
specific treaties discussed above addressing, for example, the
investigation and prosecution or extradition of alleged offenders and
mutual legal assistance between states in criminal proceedings involving
terrorist crimes. More controversially, the draft convention endeavors
to provide a comprehensive definition of terrorism, which has not yet
reached agreement among states.[89]
The relationship between the comprehensive convention and more specific
treaties on terrorism has also been the subject of continuing debate,
with some states contending that the treaty should add to the existing
conventions while others have asserted that it should be more of an
umbrella convention.[90]
As of this writing, the draft convention has remained under
consideration by the General Assembly’s Ad Hoc Committee and by the
Working Group of the Sixth Committee.[91]

35.Similar initiatives to develop comprehensive terrorism
conventions have been pursued at the regional level.[92]
As emphasized by member states in their responses to the Commission’s
invitation to submit information on the present study, these efforts
have included the Inter-American Convention Against Terrorism, which was
approved and opened for signature by the OAS General Assembly on June 3,
2002 with the stated object and purpose of preventing, punishing and
eliminating terrorism.[93]
As of this writing, the Convention has been signed by 32 member states
but has yet to be ratified by any governments.[94]
Many of the provisions of the Inter-American Convention against
Terrorism are similar to those under other anti-terrorism treaties.
These include, for example, articles that oblige states parties to
afford one another mutual legal assistance, including cooperation among
law enforcement authorities, with respect to the prevention,
investigation and prosecution of the offenses addressed by the treaty.[95]
It also renders the political offense exception inapplicable to crimes
under the treaty and requires member states to ensure that refugee
status is not granted to any person in respect of whom there are serious
reasons for considering that he or she has committed such a crime.[96]Unlike the UN terrorism convention, however, the OAS treaty
refrains from providing a comprehensive definition of terrorism, but
rather incorporates the crimes prescribed by ten existing international
treaties on terrorism.[97]
The Convention also contains extensive provisions addressing the
prevention, combating and eradication of the financing of terrorism by,
for example, requiring states parties to “institute a comprehensive
regulatory and supervisory regime for banks, other financial
institutions, and other entities deemed particularly susceptible to
being used for the financing of terrorist activities.”[98]
It similarly addresses the seizure and confiscation of funds or other
assets constituting the proceeds of, used to facilitate, or used or
intended to finance, the commission of any of the offenses under the
Convention.[99]
And as noted previously, pursuant to Article 15 all of the measures
under the treaty are subject to the requirement of respect for the rule
of law, human rights and fundamental freedoms.[100]

36.Elements of the international law of terrorism described above
are discussed in greater detail in the substantive analysis of rights
and freedoms contained in this report. It may be noted at this stage,
however, that particular regard must be paid to fundamental human rights
in the interpretation and application of certain treaty provisions. This
includes, for example, implications of the right to personal liberty and
security, the right to due process, and the non-refoulement principle
for the apprehension, detention and prosecution or extradition of
suspected terrorists, as well as the impact of the rights to property
and privacy upon the investigation, seizure and confiscation of property
allegedly used for terrorist purposes.

37.Within the inter-American system, the human rights obligations of
member states of the Organization of American States flow from several
sources.

38.By virtue of their ratification of the OAS Charter, all member
states are bound by the human rights obligations incorporated in that
instrument, which the political[101]
and human rights[102]organs of the Organization have recognized are contained in and
defined by the American Declaration of the Rights and Duties of Man.
Significant aspects of the American Declaration may also be considered
to reflect norms of customary international law.[103]
On the basis of treaty and custom, therefore, the American Declaration
constitutes a source of legal obligation for all OAS member states,
including in particular those states that have not ratified the American
Convention on Human Rights.[104]

39.Member states that have ratified the American Convention on Human
Rights explicitly undertake pursuant to Articles 1(1) and 2 of that
instrument to respect the rights and freedoms recognized in the
Convention, and to ensure to all persons subject to their jurisdiction
the free and full exercise of those rights and freedoms without
discrimination for reasons of race, color, sex, language, religion,
political or other opinion, national or social origin, economic status,
birth, or any other social condition. They also agree to adopt, in
accordance with their constitutional processes and the provisions of the
Convention such legislative or other measures as may be necessary to
give effect to the rights or freedoms where the exercise of those rights
or freedoms is not already ensured by legislative or other provisions.

40.Numerous additional treaties have supplemented and expanded upon
the rights contained in these two principal instruments and constitute
additional international obligations for member states that have
ratified or acceded to their terms. These agreements include the
Inter-American Convention to Prevent and Punish Torture,[105]
the Inter-American Convention on Forced Disappearance of Persons,[106]
the Inter-American Convention on the Prevention, Punishment, and
Eradication of Violence Against Women (“Convention of Belém do Pará”),[107]
and the Additional Protocol to the American Convention on Human Rights
in the area of Economic, Social and Cultural Rights (“Protocol of San
Salvador”).[108]

41.The Commission also observes that these instruments must be
interpreted and applied in light of several well-established rules and
principles governing international legal obligations generally, and
human rights obligations in particular, as outlined below.

42.As with all international obligations, a state’s human rights
obligations are superior to the requirements of its domestic law and
must be performed in good faith. Accordingly, states cannot invoke their
contrary domestic law as an excuse for non-compliance with international
law.[109]
It is also well recognized that the international human rights
commitments of states apply at all times, whether in situations of peace
or situations of war. This precept flows from the jurisprudence of this
Commission[110]
and other pertinent international authorities[111]
as well as the terms of human rights instruments themselves.[112]

43.A state’s human rights obligations have also been recognized as
distinct from its other international commitments, because states are,
through their international human rights commitments, deemed to submit
themselves to a legal order within which they assume various
obligations, not in relation to other states parties, but toward all
individuals within their jurisdiction. Accordingly, human rights
instruments are to be interpreted in light of an object and purpose
consistent with their fundamental nature, namely the protection of the
basic rights of individual human beings irrespective of their
nationality, both against the state of their nationality and against all
other contracting states.[113]

44.Consistent with this approach, a state’s human rights
obligations are not dependent upon a person’s nationality or presence
within a particular geographic area, but rather extend to all persons
subject to that state’s authority and control.[114]
This basic precept in turn is based upon the fundamental premise that
human rights protections are derived from the attributes of an
individual’s personality and by virtue of the fact that he or she is a
human being, and not because he or she is the citizen of a particular
state.This principle is
explicitly recognized in the preambles to both the American Declaration
and the American Convention[115]
and is also recognized in other provisions of these instruments,
including those which guarantee all persons the rights under those
instruments without any discrimination for reasons of sex, language,
creed or any other factor, including national or social origin,[116]
and the right to recognition as a person before the law.[117]

45.When interpreting and applying the provisions of inter-American
human rights instruments, it is both appropriate and necessary to take
into account member states’ obligations under other human rights and
humanitarian law treaties, which together create an interrelated and
mutually reinforcing regime of human rights protections. These treaties
include, but are not limited to, the Universal Declaration of Human
Rights,[118]
the International Covenant on Civil and Political Rights,[119]
the UN Convention relating to the Status of Refugees[120]
and its 1967 Additional Protocol,[121]
the UN Convention on the Rights of the Child,[122]
the International Convention on the Elimination of all Forms of Racial
Discrimination,[123]
the Vienna Convention on Consular Relations,[124]
the 1949 Geneva Conventions,[125]
and the 1977 Additional Protocols thereto.[126]
Under this interconnected regime of treaty obligations, one instrument
may not be used as a basis for denying or limiting other favorable or
more extensive human rights that individuals might otherwise be entitled
to under international or domestic law or practice.[127]
A chart stipulating OAS member states that have at present signed,[128]
ratified or acceded to each of the foregoing instruments has been
included as Annex “II” to this report.

46.Moreover, these treaties, together with the instruments and
jurisprudence of other international human rights systems, reflect and
form part of developments in the corpus of international human rights
law more broadly that are properly taken into account in evaluating
states’ human rights obligations in the inter-American system. As the
Inter-American Court has proclaimed, the provisions of the
inter-American instruments must be interpreted in the context of
developments in the field of international human rights law since those
instruments were first composed and with due regard to other relevant
rules of international law applicable to member states.[129]
These developments may in turn be drawn from the provisions of other
prevailing international and regional human rights instruments as
informed by relevant principles and customary rules of international
law.[130]

47.It is also pertinent to observe that the human rights framework
established by member states of the OAS is one that speaks generally to
the obligations and responsibilities of states,[131]
which are obliged to refrain from supporting, tolerating or otherwise
acquiescing in acts or omissions that fail to conform with their
international human rights commitments.[132]
Consistent with this premise, the Commission's mandate is to promote the
observance and protection of human rights by states and their agents
rather than non-state actors.[133]

48.This does not mean, however, that the conduct of non-state
actors, including terrorists and terrorist groups, bears no relevance to
the evaluation of states’ obligations concerning human rights
protections in the Hemisphere. Throughout its history, the Commission
has, for example, referenced the atrocities committed by armed dissident
groups in its press releases, in communications with governments, and in
its reports on the situation of human rights in the various member
states of the OAS.[134]
The Commission has considered violence of this nature to constitute a
relevant component of the environment in which states’ general
compliance with human rights standards must be evaluated, and as a
justification that may potentially be invoked by states as grounds for
temporarily suspending the exercise of certain rights.[135]

49.This in turn raises the issue of derogation from rights protected
under the inter-American human rights instruments. As noted above, the
fundamental human rights protection of persons apply at all times, in
peace, during emergency situations, and in war.[136]
Nevertheless, the American Convention, like other international human
rights instruments,[137]
permits states to take measures derogating from certain treaty
protections under narrowly-prescribed situations of emergency. Article
27 of the Convention provides in this regard as follows:

Article
27

1.In time of war, public danger, or other emergency that threatens
the independence or security of a State Party, it may take measures
derogating from its obligations under the present Convention to the
extent and for the period of time strictly required by the exigencies of
the situation, provided that such measures are not inconsistent with its
other obligations under international law and do not involve
discrimination on the ground of race, color, sex, language, religion, or
social origin. 2. The foregoing provision does not authorize any
suspension of the following articles: Article 3 (Right to Juridical
Personality), Article 4 (Right to Life), Article 5 (Right to Humane
Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex
Post Facto Laws), Article 12 (Freedom of Conscience and Religion),
Article 17 (Rights of the Family), Article 18 (Right to a Name), Article
19 (Rights of the Child), Article 20 (Right to Nationality), and Article
23 (Right to Participate in Government), or of the judicial guarantees
essential for the protection of such rights. 3. Any State Party availing
itself of the right of suspension shall immediately inform the other
States Parties, through the Secretary General of the Organization of
American States, of the provisions the application of which it has
suspended, the reasons that gave rise to the suspension, and the date
set for the termination of such suspension.[138]

50.While the American Declaration does not explicitly contemplate
the possibility of restricting or suspending the rights prescribed
thereunder, the Commission has considered that the derogation criteria
derived from the American Convention on Human Rights embody the
Hemisphere’s deliberations on the issue and are properly considered
and applied in the context of the Declaration.[139]

51.According to the doctrine of the inter-American human rights
system, the ability of states to take measures derogating from
protections under the human rights instruments to which they are bound
is strictly governed by several conditions, which are in turn broadly
regulated by the generally recognized principles of proportionality,
necessity and nondiscrimination:[140]

•In order to consider that there is an emergency justifying
suspension of rights, there must be an extremely grave situation of such
a nature that there is a real threat to law and order or the security of
the state, including an armed conflict, public danger, or other
emergency that imperils the public order or security of a member state;[141]

•Any suspension may only be for such time as is strictly required
by the exigencies of the situation and may not be proclaimed for
indefinite or prolonged periods;[142]

•Any suspension may only be effectuated to the extent strictly
required by the exigencies of the situation, and thereby precludes the
unnecessary suspension of rights, the imposition of restrictions more
severe than necessary, or the unnecessary extension of suspension to
regions or areas not affected by the emergency;[143]

•Any suspension of rights cannot entail discrimination of any kind
on such grounds as race, color, sex, language, religion or social
origin;[144]

•Any suspension must be compatible with all of a member state’s
other obligations under international law;[145]

•The declaration of a state of a state of emergencymust be notified to the members states of the OAS with sufficient
information that others may determine the nature of the emergency,
whether the measures are strictly required by the exigencies of the
situation, and whether they might be discriminatory or inconsistent with
the state’s other obligations under international law.[146]

52.It must also be considered, however, that certain rights can
never be the subject of derogation. The implications of this restriction
in the context of particular rights will be explored in further detail
in Part III of this Report.It
may be observed at this stage, however, that Article 27(2) of the
American Convention enumerates all of the rights that may not be the
subject of derogation, namely the right to juridical personality, the
right to life, the right to humane treatment, the prohibition of slavery
and servitude, the principle of non-retroactivity of laws, freedom of
conscience and religion, protection of the family, right to a name,
rights of the child, right to nationality, and the right to participate
in government, as well as the “judicial guarantees essential for the
protection of such rights.” In accordance with the latter
qualification and the jurisprudence of the Inter-American Court of Human
Rights, non-derogable rights within the inter-American system also
include the rule of law, the principle of legality, and habeas
corpus and amparo
remedies, which have been held to constitute judicial guarantees
essential for the protection of rights that are non-derogable.[147]
Derogable rights, in the other hand, include the right to privacy, the
right to freedom of expression, the right of assembly, the right to
freedom of association, the right to property, and the right to freedom
of movement and residence. They also include derogable aspects of the
right to personal liberty and the right to a fair trial, as discussed in
further detail below.

53.In addition to the rules governing derogation from rights, it is
apparent that certain rights protected under the inter-American human
rights instruments may properly be the subject of certain restrictions
that are specifically provided for in the provisions protecting these
rights. These restrictions, described generally as those “prescribed
by law that are necessary to protect public safety, order, health, or
morals, or the rights or freedoms of others,” are found in the
provisions of the American Convention governing the right to freedom of
conscience and religion,[148]
the right to freedom of thought and expression,[149]
and the right freedom of association.[150]
While these restriction provisions are distinct in several fundamental
respects from derogation clauses,[151]
they are, like derogation provisions, governed by specific requirements
that are the subject of strict and rigorous review by the supervisory
bodies of the inter-American system.[152]
They must also be interpreted in light of the general terms of Article
30 of the American Convention, and the corresponding stipulations under
Article XXVIII of the American Declaration,[153]
according to which the “restrictions that, pursuant to this
Convention, may be placed on the enjoyment or exercise of the rights or
freedoms recognized herein may not be applied except in accordance with
laws enacted for reasons of general interest and in accordance with the
purposes for which such restrictions have been established.”

54.According to inter-American jurisprudence, in determining the
legitimacy of restrictions of this nature and, hence, in judging whether
such provisions have been violated, it is necessary to decide on a case
by case basis whether the specific terms of restrictions or limitations
have been respected.[154]
These terms provide both procedural and substantive requirements for the
proper imposition of restrictions or limitations on particular human
rights.[155]
The procedural requirements mandate that any action that affects rights
must be prescribed by law passed by the legislature and in compliance
with the internal legal order and cannot be subject to the discretion of
a government or its officials.[156]

55.The substantive requirements provide that any restrictions must
be necessary for the security of all and in accordance with the just
demands of a democratic society, and that their application be
proportionate and closely tailored to the legitimate objective
necessitating them.[157]
The Inter-American Court has suggested in this respect that both public
order and general welfare may properly be considered in evaluating
limitations upon rights of the above nature. Public order[158]
in turn refers to the conditions that assure the normal and harmonious
functioning of institutions based on a coherent system of values and
principles, while the concept of general welfare within the framework of
the American Convention refers to the conditions of social life that
allow members of society to reach the highest level of personal
development and the optimum achievement of democratic values.[159]
When these concepts are invoked as grounds for limiting human rights,
however, they must be subjected to an interpretation that is strictly
limited to the just demands of a democratic society, which takes account
of the need to balance the competing interests involved and the need to
preserve the object and purpose of the Convention.[160]

56.As will be expanded upon in the remainder of this report, it is
clear that the human rights protections of the inter-American system are
pertinent to member states’ initiatives to respond to terrorism in
several respects: they constitute international legal obligations that
are binding on member states at all times, whether in times or war or
other emergency or in times of peace; certain situations of terrorism
might conceivably provide conditions under which member states may
properly restrict or derogate from certain rights; and certain rights,
including the right to life, the right to humane treatment and the
fundamental components of the right to due process and a fair trial, may
never properly be the subject of restriction or derogation under any
circumstances. As specified previously, this latter restriction arises
from the explicit terms of the applicable human rights instruments, as
well as the mutually reinforcing interrelationship between states’
various domestic and international human rights obligations, according
to which restrictions and derogations authorized under one instrument or
law cannot be used to legalize or justify otherwise impermissible
restrictions on or derogations from human rights under another
instrument or law.[161]

[79]See, e.g., 1979 UN Hostages Convention, supra note 33,
Article 1 (“(1) Any person who seizes or detains and threatens to
kill, to injure or to continue to detain another person (hereinafter
referred to as the “hostage”) in order to compel a third party,
namely, a State, an international intergovernmental organization, a
natural or juridical person, or a group of persons, to do or abstain
from doing any act as an explicit or implicit condition for the
release of the hostage commits the offense of taking hostages
(“hostage-taking“) within the meaning of this Convention.”) See
similarly 1971 Montreal Convention, supra note 341, Article
1; UN Crimes Against Internationally Protected Persons Convention, supra
note 35, Article 2(1).

[81]See, e.g., 1979 UN Hostages Convention, supra note 33,
Article 5(“(1) Each
State Party shall take such measures as may be necessary to establish
its jurisdiction over any offenses set forth in Article 1 which are
committed: (a) in its territory or on board a ship or aircraft
registered in that State; (b) by any of its nationals or, if that
State considers it appropriate, by those stateless persons who have
their habitual residence in its territory; (c) in order to compel that
State to do or abstain from doing any act; or (d) with respect to a
hostage who is a national of that State, if that State considers it
appropriate. (2) Each State Party shall likewise take such measures as
may be necessary to establish its jurisdiction over the offenses set
forth in Article 1 in cases where the alleged offender is present in
its territory and it does not extradite him to any of the States
mentioned in paragraph 1 of this Article. (3) This Convention does not
exclude any criminal jurisdiction exercised in accordance with
internal law”); Article 6. See similarly 1971 Montreal
Convention, supra note 34, Articles 5, 6, 7; UN Crimes Against
Internationally Protected Persons Convention, supra note 35,
Articles 3, 6, 7.

[82]See, e.g., 1979 UN Hostages Convention, supra note 33,
Article 4 (“States Parties shall cooperate in the prevention of the
offenses set forth in article 1, particularly by: (a) Taking all
practicable measures to prevent preparations in their respective
territories for the commission of those offenses, within or outside of
their territories, including measures to prohibit in their territories
illegal activities of persons, groups and organizations that
encourage, instigate, organize or engage in the perpetration of acts
of taking of hostages; (b) Exchanging information and co-ordinating
the taking of administrative and other measures as appropriate to
prevent the commission of those offenses.”), Article 11. Seesimilarly 1971 Montreal
Convention, supra note 34, Articles
11.12; UN Crimes Against
Internationally Protected Persons Convention, supra note 35,
Articles 4, 10.

[83]See, e.g., 1979 UN Hostages Convention, supra note 33,
Article 10 (“(1) The offenses set forth in article 1 shall be deemed
to be included as extraditable offenses in any extradition treaty
existing between States Parties. States Parties undertake to include
such offenses as extraditable offenses in every extradition treaty to
be concluded between them. (2) If a State Party which makes
extradition conditional on the existence of a treaty received a
request for extradition from another State Party with which it has no
extradition treaty, the requested State may at its option consider
this Convention as the legal basis for extradition in respect of the
offenses set forth in article 1. Extradition shall be subject to the
other conditions provided by the law of the requested State. (3)
States Parties which do not make extradition conditional on the
existence of a treaty shall recognize the offenses set forth in
article 1 as extraditable offenses between themselves, subject to the
conditions provided by the law of the requested state. (4) The
offenses set forth in Article 1 shall be treated, for the purpose of
extradition between State Parties, as if they had been committed not
only in the place where they occurred but also in the territories of
the States required to establish their jurisdiction in accordance with
paragraph 1 of Article 5.”) Seesimilarly 1971 Montreal
Convention, supra note 34, Article 8; UN Crimes Against
Internationally Protected Persons Convention, supra note 35,
Article 8.

[84]See, e.g., European Convention on the Suppression of Terrorism,
supra note 20, Article 1 (providing: “For the purposes of
extradition between Contracting States, none of the following offences
shall be regarded as a political offence or as an offence connected
with a political offence or as an offence inspired by political
motives: (a) an offence within the scope of the Convention for the
Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16
December 1970; (b) an offence within the scope of the Convention for
the Suppression of Unlawful Acts against the Safety of Civil Aviation,
signed at Montreal on 23 September 1971; (c) a serious offence
involving an attack against the life, physical integrity or liberty of
internationally protected persons, including diplomatic agents; (d) an
offence involving kidnapping, the taking of a hostage or serious
unlawful detention; (e) an offence involving the use of a bomb,
grenade, rocket, automatic firearm or letter or parcel bomb if this
use endangers persons; (f) an attempt to commit any of the foregoing
offences or participation as an accomplice of a person who commits or
attempts to commit such an offence.”; Inter-American Terrorism
Convention, supra note 8, Article 11.

[87]See, e.g., Reports of the Working Group of the Sixth Committee
of the UN General Assembly, UN Doc. A/AC.752/2002.CRP.1;
A/AC.252/2002/CRP.1 Add.1.

[88]
The most recent accessible version of the draft treaty appears to be
included in the Sixth Committee Working Group’s Report of October
29, 2001 containing articles 3 to 17 bis, 20 to 27, and 2 bis
(Working Group of the Sixth Committee of the General Assembly of the
United Nations, Measures to eliminate international terrorism, Sixth
Committee, 56th session, UNDoc. A/C.6/56/L.9 (29 October 2001) [hereinafter Working Group
2001 Report], as well as in the Working Group’s October 2000 report,
containing the preamble and Articles 1 and 18 (Working Group of the
Sixth Committee of the General Assembly of the United Nations,Measures to eliminate international terrorism, Sixth Committee, 55th
session, UN Doc. A/C.6/55/L.2 (19 October 2000) [hereinafter Working
Group 2000 Report]). A further draft of the convention was included in
the Ad Hoc Committee’s report from its January 28 to February 1,
2002 meeting but as of this writing the Ad Hoc Committee’s report
was not available. See UN Press Release L/2993 of February 1,
2002 on the Ad Hoc Committee on General Assembly Resolution 51/210,
6th Session, 26th meeting, citing UN Doc. A/AC.252/2002/CRP.1 and
Add.1

[90]See, e.g., Working Group of the Sixth Committee of the General
Assembly of the United Nations, Measures to eliminate international
terrorism, Sixth Committee, 56th session, UNDoc. A/C.6/56/L.9, paras. 4-9.

[92]See, e.g., European
Convention for the Suppression of Terrorism, supra note 20; OAU
Convention on the Prevention and
Combating of Terrorism, supra note 23.

[93]
Inter-American Terrorism Convention, supra note 8, Article 1
and Annex II (providing that “purposes
of this Convention are to prevent, punish, and eliminate terrorism.To that end, the states parties agree to adopt the necessary
measures and to strengthen cooperation among them, in accordance with
the terms of this Convention”).

[97]
Inter-American Convention Against Terrorism, supra note 8,
Article 2(1) (“For the purposes of this Convention, “offenses”
means the offenses established in the international instruments listed
below: a. Convention for the Suppression of Unlawful Seizure of
Aircraft, signed at The Hague on December 16, 1970. b.
Convention for the Suppression of Unlawful Acts against the Safety of
Civil Aviation, signed at Montreal on September 23, 1971. c.
Convention on the Prevention and Punishment of Crimes against
Internationally Protected Persons, including Diplomatic Agents,
adopted by the General Assembly of the United Nations on December 14,
1973. d. International Convention against the Taking of Hostages,
adopted by the General Assembly of the United Nations on December 17,
1979. e. Convention on the Physical Protection of Nuclear Material,
signed at Vienna on March 3, 1980. f. Protocol on the Suppression of
Unlawful Acts of Violence at Airports Serving International Civil
Aviation, supplementary to the Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation, signed at Montreal
on February 24, 1988. g. Convention for the Suppression of Unlawful
Acts against the Safety of Maritime Navigation, done at Rome on March
10, 1988. h. Protocol for the Suppression of Unlawful Acts against the
Safety of Fixed Platforms Located on the Continental Shelf, done at
Rome on March 10, 1988. i. International Convention for the
Suppression of Terrorist Bombings, adopted by the General Assembly of
the United Nations on December 15, 1997. j. International Convention
for the Suppression of the Financing of Terrorism, adopted by the
General Assembly of the United Nations on December 9, 1999. (2) Upon
depositing its instrument of ratification to this Convention, a state
party that is not a party to one or more of the international
instruments listed in paragraph 1 of this article may declare that, in
application of this Convention to such state party, that particular
instrument shall be deemed not to be included in that paragraph.The declaration shall cease to have effect as soon as that
instrument enters into force for that state party, which shall notify
the depositary of this fact. (3) When a state party ceases to be a
party to one of the international instruments listed in paragraph 1 of
this article, it may make a declaration, as provided in paragraph 2 of
this article, with respect to that instrument”).

[103]
The Commission has considered that it is beyond question that the core
rights protected under the American Declaration, including the right
to life, the right to liberty and the right to due process and to a
fair trial, constitute customary norms of international law. Case
12.379, Report Nº 19/02 (Inadmissibility) (27 February 2002), Alfredo
Lares Reyes et al. (United
States),
Annual Report of the IACHR 2001 para. 46.

[105]
Inter-American Convention to Prevent and Punish Torture, signed at
Cartagena de Indias, Colombia, on December 9, 1985 at the fifteenth
regular session of the General Assembly, [hereinafter
Inter-American Torture Convention], in Basic
Documents, supra note 63, at 83. For OAS member states
that are parties to this instrument, see Annex II.

[106]
Inter-American Convention on the Forced Disappearance of Persons,
adopted at Belem do Para, on June 9, 1994, at the twenty-fourth
regular session of the General Assembly [hereinafter Inter-American
Convention on Forced Disappearances], in Basic
Documents, supra
note 63, at 93. For OAS member states that are parties to this
instrument, see Annex II.

[107]
Inter-American Convention on the Prevention, Punishment and
Eradication of Violence Against Women, adopted at Belem do Pará,
Brazil on June 9, 1994, at the twenty-fourth regular session of the
General Assembly, [hereinafter Inter-American Convention on Violence
Against Women], in Basic
Documents, supra
note 63, at 101. For OAS member states that are parties to this
instrument, see Annex II.

[108]
Additional Protocol to the American Convention on Human Rights in the
area of Economic, Social and Cultural Rights, signed at San Salvador,
El Salvador on November 17, 1988 at the eighteenth regular session of
the General Assembly, in Basic
Documents, supra
note 63,
at 65.

[109]See Vienna Convention on the Law of Treaties, 1155 U.N.T.S.
331, Article 27 [hereinafter Vienna Convention on the Law of
Treaties]. See also I/A. Court H.R., Advisory Opinion OC-14/94,
International Responsibility
for the Promulgation and Enforcement of Laws in Violation of the
Convention (Articles 1 and 2 of the American Convention on Human
Rights, 9 December 1994, Ser. A Nº 14, para. 35 (recognizing
that "[p]ursuant to international law, all obligations imposed by
it must be fulfilled in good faith; domestic law may not be invoked to
justify nonfulfillment. These rules may be deemed to be general
principles of law and have been applied by the Permanent Court of
International Justice and the International Court of Justice even in
cases involving constitutional provisions."); Greco-Bulgarian
“Communities”, Advisory Opinion, 1930, P.C.I.J., Series B, Nº 17,
p.32; Treatment of Polish Nationals and Other Persons of Polish Origin
or Speech in the Danzig Territory, Advisory Opinion, 1932, P.C.I.J.,
Series A/B, Nº 44, p. 24; Free Zones of Upper Savoy and the District
of Gex, Judgment, 1932, P.C.I.J., Series A/B, Nº 46,
p. 167.

[111]See, e.g., ICJ, Advisory
Opinion on the Legality of the Threat or Use of Nuclear Weapons, supra
note 73, para. 25 (confirming that “the protection of the
International Covenant on Civil and Political Rights does not cease in
times of war, except by operation of Article 4 of the Covenant whereby
certain provisions may be derogated from in a time of national
emergency.”).

[112]See, e.g., American
Convention on Human Rights, supra
note 61, Article 27 (specifically permitting derogations from certain
rights “[i]n time of war, public danger, or other emergency that
threatens the independence or security of a State Party”). See
similarly International Covenant on Civil and Political Rights, supra
note 66, Article 4.

[113]See I/A Court H.R.,
Advisory Opinion OC-2/82, The
Effect of Reservations in the Entry into Force of the American
Convention on Human Rights (Articles 74 and 75), September 24,
1982, Ser. A Nº 2, para. 29 (emphasizing that

modern
human rights treaties in general, and the American Convention in
particular, are not multilateral treaties of the traditional type
concluded to accomplish the reciprocal exchange of rights for the
mutual benefit of the contracting States. Their object and purpose is
the protection of the basic rights of individual human beings
irrespective of their nationality, both against the State of their
nationality and all other contracting States. In concluding these
human rights treaties, the States can be deemed to submit themselves
to a legal order within which they, for the common good, assume
various obligations, not in relation to other States, but towards all
individuals within their jurisdiction.

[115]See American Declaration, supra
note 63, Preamble (“The American States have on repeated occasions
recognized that the essential rights of man are not derived from the
fact that he is a national of a certain state, but are based upon the
attributes of his human personality”; American Convention on Human
Rights, supra note
61,
Preamble “Recognizing that the essential rights of man are not
derived from one’s being a national of a certain state, but are
based upon the attributes of the human personality…”).

[119]
International Covenant on Civil and Political Rights, supra
note 66.

[120]
UN Convention relating to the Status of Refugees, 28 July 1951, 189
U.N.T.S. 150 [hereinafter UN Convention on the Status of Refugees].
For OAS member states that are parties to this instrument, see Annex
II.

[121]
Protocol Relating to the Status of Refugees, 31 January 1967, 606
U.N.T.S. 267, [hereinafter UN Protocol on the Status of Refugees]. For
OAS member states that are parties to this instrument, see Annex II.

[122]
UN Convention on the Rights of the Child, 20 November 1989, GA Res.
44/25, Annex 44 UN GAOR Supp. (No. 49) at 167, UN Doc. A/44/49 (1989),
[hereinafter UN Convention on the Rights of the Child]. For OAS member
states that are parties to this instrument,
see Annex II.

[123]
International Convention on the Elimination of all Forms of Racial
Discrimination, 21 December 1965, 660 U.N.T.S. 195 [hereinafter
International Convention on the Elimination of all Forms of Racial
Discrimination]. For OAS member states that are parties to this
instrument, see Annex II.

[124]
Vienna Convention on Consular Relations, April 24, 1963, 596 U.N.T.S.
261 [hereinafter Vienna Convention on Consular Relations]. For OAS
member states that are parties to this instrument, see Annex II.

[127]See, e.g., American
Convention on Human Rights, supra
note
61, Article 29(b) (“No provision of this Convention shall be
interpreted as restricting the enjoyment or exercise of any right or
freedom recognized by virtue of the laws of any State Party or by
virtue of another convention to which none of the states is a
party.”); International Covenant on Civil and Political Rights, supra
note 66, Article 5(2) (“There shall be no restriction upon or
derogation from any of the fundamental human rights recognized or
existing in any state Party to the present Covenant pursuant to law,
convention, regulations or custom on the pretext that the present
Covenant does not recognize such rights or that it recognizes them to
a lesser extent.”); Additional Protocol I, supra
note 68, Article 75(8) (“No provision of this Article may be
construed as limiting or infringing any other more favorable provision
granting greater protection, under any applicable rules of
international law, to persons covered by paragraph 1.”). See
generally Buergenthal, To Ensure and Respect, supra
note å, at 89-90.

[128]
In respect of member states that have signed but not yet ratified
certain instruments, Article 18 of the Vienna Convention on the Law of
Treaties, supra note 109,
provides that a “State is obliged to refrain from acts which would
defeat the object and purpose of a treaty when: (a) it has signed the
treaty or has exchanged instruments constituting the treaty subject to
ratification, acceptance or approval, until it shall have made its
intention clear not to become a party to the treaty [. . .].”

[130]Id. See also Case 12.243, Report Nº 52/01, Juan Raul
Garza (United States), Annual Report of the IACHR 2000, paras. 88-89;
Advisory Opinion OC-1/82, supra
note 73; Advisory Opinion OC-10/89, supra
note 73, para. 37; I/A Court H.R., Villagran Morales Case,
Judgment of November 19, 1999, Series C Nº
63,
at paras. 178-198 (referring to the UN Convention on the Rights of the
Child, supra note 122). See
similarly ICJ, Advisory Opinionon the Legal Consequences for States of the Continued Presence
of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), June 21, 1971, I.C.J. Reports
1971, p. 16 at 31 stating that "an international instrument must
be interpreted and applied within the overall framework of the
juridical system in force at the time of the interpretation").

[131]See OAS Charter, supra
note 116, Article 106 ("There shall be an Inter-American
Commission on Human Rights, whose principal function shall be to
promote the observance and protection of human rights and to serve as
a consultative organ of the Organization in these matters.");
American Convention on Human Rights, supra
note
61, Article 41 ("The main function of the Commission shall
be to promote respect for and defense of human rights."); Statute
of the Inter-American Commission on Human Rights, supra
note 13, Articles 18-20.

[132]
It is well-established that, unlike domestic criminal law, it is not
necessary to determine a perpetrators’ culpability or intent in
order to establish that a state’s human rights obligations have been
violated, nor is it essential to identify individually the agents to
whom the acts of violation are attributed. As the Inter-American Court
has recognized, “[t]he sole requirement is to demonstrate that the
State authorities supported or tolerated infringement of the rights
recognized in the Convention. Moreover, the State’s international
responsibility is also at issue when it does not take the necessary
steps under its domestic law to identify and, where appropriate,
punish the authors of such violations.” See
I/A Court H.R., Paniagua
Moraleset al. Case,
Judgment of March 8, 1998, Series C, Nº 37, para. 91. See
similarly Case 11.654, Report Nº 62/01, Riofrío Massacre
(Colombia), Annual Report of the IACHR 2000, paras. 48-52.

[138]
American Convention on Human Rights, supra
note
61, Article 27. For an accounting of the travaux
préparatoire to Article 27 of the American Convention on Human
Rights, see The Inter-American
System (T. Buergenthal and R. Norris, eds., 1984), Vol. 1,
Booklet 12, at 135, Minutes of the 14th session of the San
José Conference, 17 November 1969.

[139]See, e.g., IACHR, Report on
the Situation of Human Rights in Paraguay (1987), OEA/Ser.L/V/II.71
Doc. 19 rev. 1 (28 September 1987) at 15-16 [hereinafter IACHR, Report
on Paraguay (1987)]; IACHR Report on Argentina (1980), supra
note 27, at 26. As early as 1968, the Commission stipulated that
rules of derogation equivalent to those under Article 27 of the
American Convention on Human Rights applied to member states’ human
rights obligations, then as embodied in the OAS Charter and the
American Declaration. See
Resolution adopted during the 18th session of the IACHR
(April 1968), OEA/Ser.L/V/II.19 Doc. 32, reproduced in Inter-Am.
Y.B. Hum. Rts. 1968, at 61 (declaring that: “the suspension
of constitutional guarantees or 'state of siege' is compatible with
the system of representative democratic government only if enacted
under the following conditions: a. When officially decreed under the
procedure established in the respective constitutions; b. When
established in a measure strictly limited to the exigencies of the
situation and with application limited to the duration thereof; c.
When adopted in case of war or other serious public emergency
threatening the life of the nation or the security of the State; d.
When it does not entail any discrimination based on reasons of race,
color, sex, language, religion, political or other opinions, national
or social origin, economic status, birth or any other social
conditions; e. When it does nor in any manner presuppose the
suspension of the right to life, liberty or personal security, the
right to protection against arbitrary detention, the right to due
process of law, and the right to freedom of thought, conscience and
religion; f. When it does nor presuppose restriction of the rule of
law, or the provisions of the constitution, or alteration of the scope
of the Powers of the State or of the proper exercise of the police
powers.”).

[148]
American Convention on Human Rights, supra
note
61, Article
12(2) (“Freedom to manifest one’s religion and beliefs may be
subject only to the limitations prescribed by law that are necessary
to protect public safety, order, health, morals, or the rights or
freedoms of others”).

[149]
American Convention on Human Rights, supra
note
61, Article
13(2) (“The exercise of the right provided for in the foregoing
paragraph shall not be subject to prior censorship but shall be
subject to subsequent imposition of liability, which shall be
expressly established by law to the extent necessary to ensure: a.
respect for the rights or reputations of others; or b. the protection
of national security, public order, or public health or morals”).

[150]
American Convention on Human Rights, supra
note
61, Article 16(2) (“The exercise of this right shall be subject
only to such restrictions established by law as may be necessary in a
democratic society, in the interest of national security, public
safety or public order, or to protect public health or morals or the
rights and freedoms of others”).

[151]
Jaime Oraá identifies three main distinctions in the operation of
derogation clauses and limitation clauses: limitation clauses
authorize restrictions on grounds in "normal situations” or
peacetime, where as derogation clauses operate in exceptional
situations; limitation clauses only affect specific rights, whereas
derogation clauses could affect all rights under a treaty except those
that are considered non-derogable; and the operation of limitation
clauses does not require any special declaration by the State, whereas
derogation clauses require the notification to the other states
parties to the treaty of the proclamation of the emergency, the
derogated provisions, and the reasons therefore. Jaime
Oraá, Human Rights in States of Emergency in International Law 9-10
(1992).

[153]
Article XXVIII of the American Declaration provides: “The rights of
man are limited by the rights of others, by the security of all, and
by the just demands of the general welfare and the advancement of
democracy.”

[155]See American Convention on
Human Rights, supra note
61, Article 30 (“The restrictions that, pursuant to this Convention,
may be placed on the enjoyment or exercise of the rights or freedoms
recognized herein may not be applied except in accordance with laws
enacted for reasons of general interest and in accordance with the
purpose for which such restrictions have been established.”);
American Declaration, supra
note 63, Article XXVIII. See
also Advisory Opinion OC-5/85, supra
note 152, para. 37.

[158]
As recognized by the drafters of the International Covenant on Civil
and Political Rights and by noted publicists, the phrase “public
order” is a term of art borrowed from national legal systems that
must be interpreted in light of the treatment of the term in those
particular systems. This includes interpreting the phrase in
conjunction with the French concept of ordre public, which in a
broad sense permits limitations on particular human rights where those
limitations are necessary to ensure a minimum level of public welfare
and social organization. See, e.g., ICCPR, supra note
66, Article 12(3)(providing
that the rights to liberty of movement and freedom to choose residence
“shall not be subject to any restrictions except those which are
provided by law, are necessary to protect national security, public
order (ordre public), public health or morals or the rights and
freedoms of others, and are consistent with other rights recognized in
the present Covenant.”). See alsoM.J.
Bossuyt, Guide to the “Travaux Préparatiores” of the
International Covenant on Civil and Political Rights 258
(1987), citing Report of the Third Committee of the General
Assembly, 14th session (1959), UN Doc. A/4299, § 15;
Alexandre Charles Kiss, Permissible Limitations on Rights, in The
International Bill of Rights–The Covenant on Civil and Political
Rights 290, 299-301(Louis Henkin, ed., 1981) [hereinafter Kiss,
Permissible Limitations on Rights].